Ohio Public Employees Need Not Provide 10 Day Notice Prior to Informational Picket

By Nelson Cary and Michael Shoenfelt

Under Ohio law, a public employee union is required to provide ten days advance notice of its intention to engage in “any picketing, striking, or other concerted refusal to work.” Last week, the Ohio Supreme Court decided how this rule applied to an informational picket, which does not involve a simultaneous work stoppage, but instead is intended to notify the public of a dispute with the public employer. In Mahoning Education  Association of Developmental Disabilities v. State Employment Relations Board, Slip Opinion No. 2013-Ohio-4654 (pdf), the Court held that the 10 day notice did not apply to an informational picket.

The Court could not unanimously agree on why the law did not apply. Dissecting the law’s wording, the majority of the Court focused on the word “other.”  In the majority’s interpretation, because the General Assembly included the words “other concerted refusal to work,” it must have intended the law to apply to “picketing” and “striking” only when those actions were also concerted refusals to work. Because informational picketing is not a “concerted refusal to work,” the majority held that unions do not have to provide notice ten days before picketing.

The two concurring justices agreed with this result, but focused their attention on the word “any.” In their opinion, the words “any picketing” meant that unions had to provide notice ten days before any variety of picketing. The concurring justices noted, however, that requiring that notice was equivalent to telling the unions what they could and could not say for those ten days. The concurring justices reasoned that this was a violation of the Right to Free Speech guaranteed under the First Amendment, and that the law was therefore unconstitutional.  

For the labor professional in Ohio’s public sector, the ruling is a win for unions representing public employees. Among other things, public employers may find themselves confronting an informational picket designed to pressure management on a point in contention between it and a union. Without a ten day waiting period, management will have significantly less time to prepare for, and respond to, any such picketing. Thus, particularly when preparing for collective bargaining, management should plan ahead for how it will lawfully respond to any informational picketing that may occur.

For more on the arguments advanced by the parties in the case, watch the oral argument video.

SERB Releases Health Insurance Cost Information

Last week, Ohio’s State Employment Relations Board released its 21st Annual Report on the Cost of Health Insurance in Ohio’s Public Sector (pdf). The Report surveyed public employers in Ohio at all levels of government, including cities, counties, townships, colleges and universities, and school districts, to name just a few of the employer types covered. Over 92% of the public employers surveyed responded.

While the Report goes into considerable detail, some of the more interesting highlights include:

  • The average monthly premium for single coverage is $520 and for family coverage is $1,370;
  • Those premiums reflect a 2.8% and 2.3% increase, respectively, from 2012 costs;
  • In 2013, only 13.2% of single coverage medical plans and 11.3% of family coverage medical plans required no contribution from the employee;
  • The average monthly employee contribution for single coverage is $66 and for family coverage is $184, excluding those plans where employees do not have to contribute to the cost of coverage;
  • Regional transit authorities recorded the highest average premium among the various employer types in the survey and fire districts reported the lowest; and
  • Colleges and universities as well as counties (among others) had average monthly premiums that exceeded the statewide average.

It is important to note that, while the Report was issued last week, the data in the Report is representative of public sector medical insurance plans that were in effect on January 1, 2013.

SERB Releases Annual Report

Labor professionals working for public employers in Ohio may be interested in reviewing SERB's annual report (pdf).  Ohio law requires SERB to issue a report on its operations.  Last week, SERB sent its report to Governor Kasich (R).  The report is also posted to its website.  Some of the notable highlights from the report include:

  • consolidation of the State Personnel Board of Review (SPBR) into SERB's organizational structure;
  • implementation of a new Management and Docketing System and other technology upgrades in SERB's operations; and
  • addressing what SERB termed an "important lapse in regulatory monitoring" in connection with the collection of reports from public employee unions containing specific information, including certain financial information from unions.

In addition, SERB's annual report contains a number of tables containing statistical data of potential interest to the public sector labor professional.  These include summaries of:

  • the number and type of cases SERB handled during the fiscal year, and the outcomes of those cases (p. 9);
  • the activity in the Bureau of Mediation, including statistical outcomes for fact-finding reports (p.12);
  • representation case statistics (p.13); and
  • unfair labor practice case resolutions (p. 13).

 

"Exigent Circumstances" Justify City's Modification to Existing Union Contract

By Nelson Cary and Lauren Frame

Relying on decade-old precedent, the Ohio State Employment Relations Board (“SERB” or “Board”) issued a decision on April 28 that is very much a reflection of current economic times. In a 2-1 decision, SERB held that because the City of Toledo faced “exigent circumstances,” the City did not commit an unfair labor practice when it made changes to an existing bargaining agreement without negotiating with the union. SERB v. City of Toledo, SERB 2011-001 (4-28-2011) (pdf).

The City of Toledo modified its existing agreement with the Toledo Police Command Officers’ Association (“Union”) by unilaterally increasing Union members’ healthcare premiums and rescinding the City’s 10% payment into the Union’s pension fund. The City argued that the existence of exigent circumstances necessitated the changes and, therefore, the City’s unilateral implementation without bargaining or reaching agreement with the Union did not constitute an unfair labor practice. 

Generally, decisions involving mandatory subjects of bargaining (e.g., wages, hours, and terms and conditions of employment), must be bargained before implementation, except where “emergency situations,” render prior bargaining impossible. In re Toledo City School Dist. Bd. of Ed., SERB 2001-005 (9-20-2001) (“Toledo Schools”). “[E]xigent circumstances that were unforeseen at the time of negotiations” constitute “emergency situations” within the meaning of Toledo Schools. Id. at 3-29. Thus, the question for the Board was whether the City needed to act immediately due to exigent circumstances, unforeseen at the time of negotiations.

Following an assessment of the City’s dire economic situation and noting the “predicament” the City faced, including a 24% funding deficit unforeseen at the time negotiations began and a budget that must be balanced, the Board concluded that this “certainly fits the description of exigent circumstances.” City of Toledo, SERB 2011 at 11. Accordingly, SERB concluded that the City did not commit an unfair labor practice.

To those labor professions who have followed the discussion related to Ohio Senate Bill 5, the law that reforms Ohio’s public employee collective bargaining rules, SERB’s decision, which hinges on the determination of “exigent circumstances,” may sound familiar. Indeed, Senate Bill 5 contains provisions which effectively permit an employer in a state of “fiscal emergency,” as determined by the auditor of the state, to terminate, negotiate, or modify an existing collective bargaining agreement, including modification of the agreement to suspend established salary or benefit increases, or both. Perhaps SERB v. City of Toledo is an indication that even without Senate Bill 5, public employers in dire economic situations may find some relief from stringent collective bargaining agreements via the SERB’s interpretation of “exigent circumstances," assuming that the case is not overturned on appeal or reversed by a future Board with different members.

UPDATE: Governor Kasich Signs Senate Bill 5

 

On March 31, 2011, Governor Kasich signed Senate Bill 5 into law.  Governor Kasich's signature ends the legislative process that began earlier this year.  As is usually the case, the bill changed significantly from the beginning to the end of the process, starting out by eliminating bargaining entirely for certain state employees.  The legislative process ended, however, by preserving collective bargaining, but narrowing the range of topics on which a public employer can negotiate with a union representing its employees.  Watch this blog early next week for additional details on the significant provisions of Senate Bill 5, as signed by the Governor.

Opponents of the legislation have vowed to take their arguments directly to the voters.  Under Ohio law, newly enacted legislation can be subject to a statewide ballot referendum.  If the required signatures are obtained, Ohio voters will get the chance to vote on the law this November.  Thus, while the legislative process may be over, the battle over public sector collective bargaining appears set to continue.

PROMISED UPDATE (4/5/2011):  Here is a summary of some of the more significant provisions of Senate Bill 5:

  • No Fair Share Fee - A collective bargaining agreement for public employees may not require non-union members to pay the union a fee for representation services.
  • Easier to Decertify - Decertification of a public employee union requires petition signatures from only 30% of workers in the collective bargaining unit, as opposed to the previous requirement of 50%.
  • No Automatic Pay Increases for Longevity – Instead, the bill institutes a performance pay system for all public workers and requires that layoffs no longer be based solely on seniority.
  • Scope of Bargaining Narrowed - Bargaining about health care, sick leave, and pension benefits is limited. For public school teachers, the law removes additional issues from collective bargaining.
  • No Strikes – It is unlawful for any public employee to strike.
  • Employee Health Care Cost Minimum – The bill requires public workers to pay at least 15% of their health care costs.
  • Eliminates Binding Arbitration – The bill eliminates binding arbitration as a means of resolving bargaining disputes. Instead, in all public collective bargaining negotiations, the bill adopts mediation and fact-finding as the means to resolve contract disputes. However, if either the employer or the union rejects the fact finder’s recommendation, then the last, best offers made by both sides are presented at a public hearing. At the hearing’s conclusion, the legislative body of the employer is required to accept either its final offer or the union’s.

In addition, The Columbus Dispatch reports today that opponents have gathered enough signatures to take the first step towards putting the law on the November 2011 ballot; and at the same time, three large public unions are contemplating charging union members a special fee to finance the campaign against the law.

UPDATE: House Committee Votes to Amend Senate Bill 5

Today, the Ohio House Commerce and Labor Committee considered amendments to Senate Bill 5.  According to a report in The Columbus Dispatch, some of the changes considered include:

  • Giving public employees the right to refuse to pay "fair share" fees to unions.
  • Making some changes to impasse resolution mechanisms, primarily by providing an option of a public referendum on a union contract that could not be paid for without a tax increase.
  • Clarifying that safety forces can bargain for equipment.
  • Permitting public employees to speak to public officials during contract negotiations.

This afternoon, the House committee voted 9-6 in favor of the legislation.  The bill will move next to the House. 

Opponents of the legislation have not offered any amendments to it, maintaining that the legislation is so bad that nothing can fix it.  Rather, opponents seem focused on a ballot initiative, perhaps as early as November 2011. 

Meanwhile, pollsters have been active, asking Ohioians about their views on the proposed legislation.  The results are not favorable for supporters of Senate Bill 5.

UPDATE: Senate Bill 5 Clears Ohio Senate

Senate Bill 5, the legislation that would substantially reform the public employee collective bargaining system in Ohio, has passed the Ohio Senate.  It now moves on to the Ohio House of Representatives for consideration.

The bill that passed in the Senate was significantly different from the bill originally introduced by its sponsor, Senator Shannon Jones (R).  Among other changes, the amended bill that passed:

  • Restores collective bargaining rights for public employees of the state, state-supported colleges and universities, and any agency, commission, authority, or board of the state.
  • Restores Ohio's Office of Collective Bargaining.
  • Limits the ability of public employers to agree to any contract that requires public employees to pay less than 15% (rather than 20% as in the bill as introduced) of the cost of health insurance.
  • Changes the definition of "supervisor" as it relates to faculty members at a state college or university.
  • Alters, from the bill as introduced and from current law, the procedures that come into play upon an impasse in negotiations.
  • Prohibits strikes for all public employees, not just certain groups of public employees, as was the case under both current law and the bill as introduced.
  • Expands the list of a public employer's management rights to include (among other things) the right to transfer or subcontract work.
  • Requires a public employer to deduct union dues and fees, but only so long as the union has filed and maintained a report detailing its expenditures, and also imposes a suspension of dues payments as a penalty for a union that engages in a prohibited strike or similar conduct.
  • Prohibits an hourly overtime premium rate that exceeds the rate required by the FLSA.
  • Imposes limits on paid vacation, holidays, and personal days.

These are just a few examples of the changes contained in the bill, which passed by a slim 17-16 margin.  According to press reports, the Ohio House plans an aggressive hearing schedule and ultimately a vote in the next few weeks.  Governor Kasich applauded (pdf) the Senate's action in passing the the bill.  For their part, opponents are talking about a possible ballot referendum on the bill, taking their case directly to the voters.

UPDATE: Public Sector Bargaining Rights Battle Rages

The headline on our last post certainly seems apt now.  A battle truly has erupted -- and not just here in Ohio -- over the issue of public sector employee collective bargaining rights.  Wisconsin also confronts the issue; coverage of that dispute is easy enough to come by, but here is a recent example.  Michigan, however, appears set to stay out of the fray.  The issue has even garnered President Obama's attention.

Here in Ohio, the hearings on Senator Jones' bill continue, as do the mass crowds at the Statehouse.  Supporters and opponents of the bill have testified.  Supporters tell the Senate committee, among other things, that the bill provides needed flexibility in the management of their workforces, helps address looming budget problems, and addresses imbalances of power between unions and the public employers.  Opponents of the bill tell the committee, among other things, that the law isn't needed and that concessions have already been made.

While the back and forth is certainly an interesting case study in politics, the labor professional will want to remain focused on what is actually in the bill.  And so far, that hasn't changed.  Despite invitations to unions during the hearings to provide suggested changes to the bill, no amendments have yet been proposed. 

For an excellent summary of the content of the bill, check out the bill analysis (pdf) prepared by the Ohio Legislative Services Commission.  The Commission is a non-partisan state agency that is part of the General Assembly.  As the legislative process continues, monitoring what is actually in the bill will help the labor professional plan for future developments.

The Battle Over Public Sector Collective Bargaining Begins

On February 9, 2011, Senator Shannon Jones (R - Springboro) introduced Senate Bill 5.  It contains significant changes to Ohio's State Employment Relations Act, the law that governs public employee labor/management relations.  Labor unions decried the proposal, and hundreds of union members appeared at the initial hearing of the bill.

The law amends several provisions of the Ohio Revised Code and runs for 475 pages.  As it pertains to the State Employment Relations Act, however, Senate Bill 5 (pdf) would:

  • Prohibit a state institution of higher education, the state itself, and any agency, authority, commission, or board of the state from collectively bargaining with its employees.
  • Alter the procedures applicable once the parties reach an impasse in their negotiations.
  • Change the definition of "supervisor" as it applies to police officers.
  • Limit bargaining on health care benefits to just the question of how much the public employee must pay for employer-provided coverage, and prohibiting any agreement that would permit the public employee to pay less than 20% of that cost.
  • Prevent public school districts from agreeing in a labor contract to a laundry list of proposals, including those that would require minimum staffing, maximum number of students per class, or limit the ability to transfer staff between buildings.
  • Take away the authority of a public school district to negotiate over salaries or health insurance benefits.
  • Direct public employers not to agree to a provision that would require the public employer to consider only length of service in any reduction-in-force.
  • Abolish Ohio's Office of Collective Bargaining.

Governor Kasich  who has previously signaled his support for reform of Ohio's public employee union system, voiced his support for the bill.  Interestingly, however, it appears that the Governor may also have his own ideas on public sector labor law reform.  These go well beyond what Senate Bill 5 proposes.  The Columbus Dispatch reports that the Governor is considering legislation that would outlaw strikes for all public employees, not just for certain groups of public employees, as is the case in the proposed Senate bill.

If Senate Bill 5 passes in its current form, the implications for public sector labor relations will be substantial.  Indeed, the list above contains only some highlights, it is not even a comprehensive catalogue of all the changes proposed.  The public sector labor professional will need to monitor the legislative process closely, and may want to consider the impact of these changes on any unionized component of their workforce.

SERB Modifies Mail Ballot Procedure

In late 2009, SERB published its rules regarding the use of mail ballots in public employer labor elections.  The rules were effective in early 2010.  Accompanying the rules was a procedural summary describing how SERB intended to implement its mail ballot rule.  Mail ballots were a new procedure for SERB at the time, but one that had been used before by the NLRB in the private sector.

Part of the procedure SERB has followed since the rule became effective involved sending a "mail ballot kit" to eligible voters in an election.  The kit contained the ballot and a means to return it to SERB.  The kit was mailed at least three days before the polling period began.  The polling period could run for a number of days.

Now that SERB has conducted some mail ballot elections pursuant to its procedures, it has announced a change to its procedure.  Specifically, effective February 1, 2011, ballots mailed back to SERB before the polling period begins will be valid and counted.  Those returned after the polling period ends will not be valid and not counted.  The new procedure is already posted on SERB's website, with the modification being shown in paragraph 7.

Change on the Way for Ohio Public Employers?

In a press conference yesterday afternoon, Governor-Elect John Kasich discussed Ohio's public sector bargaining process.  The comments suggest that change may be on the horizon when it comes to binding interest arbitration for certain public employees.

Ohio law presently limits the right of certain employees to strike.  These employees typically hold safety sensitive positions, like police officers and fire fighters.  To settle disputed bargaining issues in these units, the law establishes a procedure that requires an arbitrator to hear disputed issues, and then pick the union's proposal or the public employer's proposal.  This process is referred to as interest arbitration or conciliation.

At the press conference, the following exchange took place, according to video on The Columbus Dispatch's website:

Q:  Now that you have Republicans in the House and a big Republican majority in the Senate, do you have any plans to try to scale back the power of labor unions?

A:  . . . I'm not going to get into trying to pick on anybody right now.  In terms of what I am concerned about is I'm concerned about the impact of binding arbitration on our cities.  You have a situation where an outside person comes in, they mandate settlement on a community, the community has no say, and then that arbiter leaves.  That's a flawed system.  We intend to take a look at that because that binding arbitration is really hurting cities. . . .  This is a very big problem and that's one thing that we are going to look at in terms of labor. . . .

With only two days having passed since the election, it is obviously too early to predict what the newly elected governor or his team may have in mind.  If existing law were to change, however, and depending on how the law changed, the implications for public employers could be substantial and multi-faceted.  It is certainly an issue that labor professionals in the public sector will want to monitor closely over the coming months.

Ohio State Employment Relations Board Rules Police Captains May Be Included in Bargaining Unit

A threshold issue in labor relations is which grouping of employees constitutes an appropriate bargaining unit.  Those who are in the bargaining unit will be represented by the union.  This question must be addressed by both public and private sector employers.  In Ohio, particularly in the area of law enforcement personnel, there are unique rules applicable to public employees.

Late last week, the Ohio State Employment Relations Board (SERB) demonstrated just how far-reaching state law can be in including law enforcement personnel in a bargaining unit.  A union sought recognition as the representative of captains in a police department.  There were two captains, both reporting to the Chief of Police.  The captains attended bargaining sessions as representatives of the public employer.  They acted as the Chief of Police when the Chief was absent.  They attended disciplinary conferences.

Despite these facts, SERB held that the bargaining unit the union sought -- all police captains -- was an appropriate bargaining unit.  SERB noted that, while the captains participated in a number of the duties noted above, the Chief exercised the real authority.  For example, in negotiations, the captains simply gathered information for the Chief.  Even when absent, the Chief was always reachable by Blackberry.  Indeed, lower ranking members of the police force, including sergeants and lieutenants served as Acting Chief.  And in disciplinary matters, the Chief was ultimately responsible for determining discipline.

While the public employer attempted to exclude the captains as "confidential" employees, "management level" employees, or "supervisors," SERB rejected each argument.  When the details of the employees duties were examined, it became clear that the real power, exercised on behalf of the employer, resided in the Chief, and not in the captains.  Accordingly, the captains could be in a bargaining unit, and represented by the union.

The SERB decision is an important reminder that titles do not matter, actual duties do.  Employers that believe certain employees are representatives of management should periodically review the duties of those individuals to ensure that they exercise the appropriate level of responsibility on a regular basis.

Ohio State Employment Relations Board to Hold Hearing on New Procedural Rules

The Ohio State Employment Relations Board (SERB) will hold a public hearing on August 23, 2010.  At issue in the hearing will be new procedural regulations that SERB posted to its website last month.

The proposed regulations modify a number of different provisions of the SERB's procedural regulations.  The most significant changes in the draft regulations include:

  • Electronic filing.  Many documents required in various SERB cases could be filed via e-mail with SERB.  Those documents could also be served on other parties in the same fashion.
  • Mutually agreed upon dispute resolution procedures.  Any such agreement must be included in the Notice to Negotiate.  Parties would have an obligation to "regularly, or upon request" update SERB of the "status and/or progress" of that procedure.  Either party could file a motion with SERB to declare the procedure "concluded." 

In light of these developments, a labor professional in the public sector may want to:

  • View the draft regulations here (.pdf).
  • Consider whether the changes could affect the way in which the public employer handles negotiations or labor disputes, especially if the public employer utilizes a mutually agreed upon dispute resolution procedure. 
  • Understand the electronic filing rules and procedures.
  • Determine whether it should attend the public hearing SERB has announced.

 

 

Ohio State Employment Relations Board Publishes Mail Ballot Rule

In Ohio, the State Employment Relations Board (SERB) is responsible for, among other things, overseeing union organizing in the public sector workforce (e.g., firefighters and police officers). SERB has been working on a rule that requires union representation elections to be held by mail, rather than through a secret ballot vote at the public employer's place of business. Such an on-site election is supervised by an agent of SERB and was the traditional way in which public employees in Ohio decided if they wanted union representation.

Recently, the SERB's final mail ballot rule became effective. The final rule provides that SERB, in its discretion, may order a mail ballot rather than an in person ballot. If a mail ballot is used, SERB sends out a Mail Ballot Kit, which will include a ballot, a ballot envelope, a pre-addressed, stamped return envelope, and instructions. The regulations provide that there will be a window of 14 days from the date the ballot is mailed for employees to return the ballot to SERB.

SERB's rule leaves open some questions. For example, it appears from the new rule that an in-person election will be held if SERB determines that, in the circumstances of a particular case, it would be "more efficient or appropriate." How that standard will be applied in future union elections involving public employers and employees remains to be seen.